THE PEOPLE OF THE STATE OF NEW YORK RESPONDENT v. RASHAD PETERKIN DEFENDANT APPELLANT (2011)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed.

Memorandum:  Defendant appeals from a judgment convicting him upon a jury verdict of, inter alia, six counts of robbery in the first degree (Penal Law § 160.15[4] ) arising from two separate gunpoint robberies.   Contrary to defendant's contention, Supreme Court properly refused “to suppress the in-court identification of [the] victim who had viewed defendant's photograph in the newspaper ․ or to require the People to establish that [such] victim [ ] had an independent basis for [his] identification[ ]” (People v. Fontanez, 278 A.D.2d 933, 934, lv denied 96 N.Y.2d 862;  see People v. Stevens, 44 AD3d 882;  People v. Fuller, 185 A.D.2d 446, 449, lv denied 80 N.Y.2d 974, 81 N.Y.2d 788).   We reject the contention of defendant that the in-court identification was tainted because the lineup in which the victim in question identified defendant was conducted after that victim had viewed a photo array.  “Multiple pretrial identification procedures are not inherently suggestive ․, and the record supports the court's determination that the photo array and subsequent lineup ‘were not so suggestive as to create the substantial likelihood that defendant would be misidentified’ “ (People v. Johnson, 52 AD3d 1286, 1286, lv denied 11 NY3d 738;  see People v. Brown, 254 A.D.2d 781, 782, lv denied 92 N.Y.2d 1029).   Contrary to defendant's contention, the comments of the police investigator, including her “comment to the [victim in question] that [she] believed that the police had arrested the same individual [he] had selected from the photo[ ] array did not render the lineup unduly suggestive ․ [inasmuch as] there was no suggestion as to which of the lineup participants was that individual” (People v. Simmonds, 182 A.D.2d 650, 651-652, lv denied 80 N.Y.2d 910;  see People v. Goodman, 167 A.D.2d 352, lv denied 77 N.Y.2d 878).   Further, we conclude that “[t]he prosecutor's reference to the prior photo identification was ill-advised, but [it] was not tantamount to coaching the [victim] to make a particular selection at the lineup” (People v. Coble, 168 A.D.2d 981, 982, lv denied 78 N.Y.2d 954;  see generally People v. Wongshing, 245 A.D.2d 186, lv denied 91 N.Y.2d 978).   We have considered defendant's remaining contentions concerning suppression of the identification testimony and conclude that they are without merit.

Defendant further contends that he was deprived of a fair trial based on the court's denial of his request for funding in excess of the $1,000 statutory limit to retain an expert with respect to identification issues (see County Law § 722-c).   Even assuming, arguendo, that the court erred in denying that request, we conclude that defendant was not thereby deprived of a fair trial because this “is not a ‘case [that] turns on the accuracy of eyewitness identifications [where] there is little or no corroborating evidence connecting the defendant to the crime’ “ (People v. Abney, 13 NY3d 251, 269;  see People v. Lee, 96 N.Y.2d 157, 162-163).   Indeed, “the corroboration was strong enough for the ․ court reasonably to conclude that the expert's testimony would be of minor importance” (People v. Young, 7 NY3d 40, 45).

We reject the contention of defendant that the court abused its discretion in denying his request for an adjournment of the trial based on the People's belated delivery of records related to DNA evidence and his inability to retain an expert concerning the issue of identification.   Although defendant is correct that the court's discretion with respect to a request for an adjournment is more narrowly construed when a fundamental right is impacted (see People v. Spears, 64 N.Y.2d 698, 699-700;  People v. McNear, 265 A.D.2d 810, 810-811, lv. denied 94 N.Y.2d 864), it is well settled that “[t]he court's exercise of discretion in denying a request for an adjournment will not be overturned absent a showing of prejudice” (People v. Arroyo, 161 A.D.2d 1127, 1127, lv denied 76 N.Y.2d 852;  see People v. Bones, 50 AD3d 1527, lv denied 10 NY3d 956), and defendant made no such showing here.   Defendant was not prejudiced by the People's belated delivery of records related to DNA evidence inasmuch as the trial did not commence until two weeks after defendant obtained those records and the court eventually precluded the People from introducing that evidence.   Also, defendant was not prejudiced by his inability to retain an expert on the issue of identification.

Patricia L. Morgan

Clerk of the Court